93 Decision Citation: BVA 93-05898
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-56 903 ) DATE
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THE ISSUE
Entitlement to service connection for disabilities of the
cervical and lumbar spine.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
R. A. Caffery, Counsel
INTRODUCTION
The veteran had active service from February 1963 to
February 1965 and from May 1965 to January 1969. This is an
appeal from an action of the Department of Veterans Affairs
(VA) Regional Office at Montgomery, Alabama, denying
entitlement to service connection for disabilities of the
cervical and lumbar spine. The notice of disagreement was
received in June 1990. The statement of the case was issued
in August 1990. The substantive appeal was received in
September 1990 when the veteran testified before a hearing
officer at the regional office. The case was initially
received at the Board of Veterans' Appeals (hereinafter the
Board) in June 1991. The case was remanded in June 1991 for
further action. A supplemental statement of the case was
issued in January 1992. The case was returned to the Board
in April 1992. In August 1992 the case was again remanded
for further action. The case was returned to the Board in
January 1993. The veteran is represented by the Disabled
American Veterans and that organization submitted written
argument on his behalf in March 1991, June 1992 and January
1993. The case is now ready for appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in substance, that service connection
should be established for disabilities of the cervical and
lumbar spine since during service, while aboard his boat, he
slipped and fell about 10 feet and struck his head. He
thereafter had difficulty with his cervical and lumbar spine
and was treated by a private physician shortly after his
separation from military service. He was again treated at a
VA medical center in 1978.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all
evidence and material of record in the veteran's claims file
and for the following reasons and bases, it is the decision
of the Board that the preponderance of the evidence is
against the veteran's claim for service connection for
disabilities of the cervical and lumbar spine.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
regional office.
2. The veteran was seen on an outpatient basis during
service after falling and striking his head with subsequent
pain in his back and shoulders. There was no further
reference to any residual disability from the incident
during the remainder of the veteran's military service.
3. Disabilities involving the cervical and lumbar spine,
including degenerative arthritis, were initially medically
demonstrated in 1988, many years following the veteran's
release from active duty.
4. The inservice injury to the veteran's head, back and
shoulders was acute and transitory and resolved leaving no
residual disability.
CONCLUSION OF LAW
A chronic disability involving the veteran's cervical and
lumbar spine was not incurred in or aggravated during
service. Degenerative arthritis of the cervical and lumbar
spine may not be presumed to have been incurred in service.
38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107
(West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1992).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
We note that we have found the appellant's claims are "well
grounded" within the meaning of 38 U.S.C.A. § 5107(a)
(West 1991); effective on and after September 1, 1989. That
is, we find that he has presented claims which are
plausible. We are also satisfied that all relevant facts
have been properly developed. In this regard, there is of
record a September 1990 letter from W. E. Parker, M.D.,
indicating that he had treated the veteran on an
intermittent basis from 1969 to 1987 and that the veteran's
complaints had included discomfort in the neck and low
back. However, the veteran was asked by the regional office
on two occasions to provide the necessary authorization so
that the complete office records of Dr. Parker could be
obtained and did not respond. Accordingly, further
development in this regard is not warranted.
A review of the veteran's service medical records reflects
that in July 1968 he was seen for complaints of pain
involving the chest and low back. He indicated that the
pain was present when he coughed. Various findings were
recorded on physical examination including a few rhonchi on
the right. An impression was made of bronchitis.
The veteran's service medical records further reflect that
he was seen at a dispensary in December 1968 after falling
on his head and having pain down his back and shoulders. It
was stated that there was no change in his vision and no
dizziness. Paraflex and Tylenol were prescribed. He was
also to apply heat three times a day. No pertinent
abnormalities were reported in January 1969 when the veteran
was examined for discharge. The veteran did not receive any
awards for combat.
The veteran was afforded a medical examination for Naval
Reserve purposes in October 1971. In a medical history form
completed at that time, the veteran indicated among other
things that he did not have or had never had arthritis,
rheumatism or bursitis, bone, joint or other deformity or
recurrent back pain. Clinical evaluation of the spine was
normal.
The veteran's initial application for VA disability benefits
was submitted in November 1980. He claimed benefits based
on exposure to Agent Orange while in Vietnam. He made no
reference to cervical or lumbar spine conditions.
In February 1990 the veteran submitted a claim for
deterioration of the spine resulting in a ruptured disc.
The regional office thereafter received a number of private
medical reports reflecting treatment of the veteran. He was
seen in May 1988 by John E. Hackman, M.D., for complaints of
neck, arm and shoulder pain. Reportedly, he was working for
a county sheriff's department. It was indicated that 3 or
4 weeks previously, for no obvious reason, he had developed
left-sided neck, arm and shoulder pain. He had numbness and
tingling down the arm. A myelogram of the entire spine in
May 1988 showed prominent posterior osteophytes at C4-C5 and
C5-C6 with corresponding ventral extradural defects.
The private medical reports reflect that the veteran was
hospitalized at the Jackson Hospital in January 1990 for
neck, arm and shoulder pain with numbness of the hand. An
anterior cervical diskectomy and interbody fusion at C6-C7
were performed. The discharge diagnosis was cervical disc
herniation at C6-C7 on the right with cervical radiculitis.
At the September 1990 hearing, the veteran testified that he
had served as a gunner's mate on a cargo ship on rivers in
Vietnam. His main job was to make sure all the weapons were
fireable. He recalled that in December 1968, while aboard
the cargo ship, a weapon jammmed during a firefight and he
slipped and fell into the well of the boat, hitting his
head. He said that medical help was not available at the
time. The veteran testified that he thought his first
treatment after service was in 1969 from Dr. Peters, for
headaches and "a hint of numbness," and that he thought his
first VA treatment was in 1978.
In the September 1990 statement from Dr. Parker indicating
that the veteran had been treated on an intermittent basis
from 1969 to 1987, the veteran reportedly had given a
history of having sustained a cervical spine injury in
December 1968. The veteran complained of headaches and also
discomfort in the neck and occasionally the low back.
The regional office also received a September 1990 statement
by George Handey, M.D., indicating that several months
previously the veteran had undergone cervical disc surgery
for radiculopathy. It was indicated that he was doing
relatively well postoperatively but continued to have some
intermittent pain in his neck and upper extremities. It was
stated that he also had degenerative joint disease in the
lumbar spine.
The veteran was examined by the VA in November 1991. He
stated that in December 1968 while in a firefight in Vietnam
he had fallen a distance of 10 feet and injured his back and
neck. He reported that for the previous 10 years he had
experienced numbness in his arms and legs. Various findings
were recorded on the physical examination. X-ray studies
showed spondylitic changes of the cervical and lumbar
spine. Impressions were made of post anterior fusion of the
cervical spine with persistent radiculopathy and
degenerative disc disease of the lumbar spine.
The regional office later contacted the VA Medical Center at
Montgomery for records of any treatment of the veteran since
1978. The hospital indicated that no such records were
available.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by
service. 38 U.S.C.A. §§ 1110, 1131. Where a veteran served
continuously for ninety (90) days or more during a period of
war or during peacetime service after December 31, 1946, and
degenerative arthritis becomes manifest to a degree of
10 percent within one year from date of termination of such
service, such disease shall be presumed to have been
incurred in service, even though there is no evidence of
such disease during the period of service. This presumption
is rebuttable by affirmative evidence to the contrary.
38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307,
3.309.
For the showing of chronic disease in service there is
required a combination of manifestations sufficient to
identify the disease entity and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic." Continuity of symptomatology is required where
the condition noted during service is not, in fact, shown to
be chronic or where the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the
claim. 38 C.F.R. § 3.303(b).
Although the veteran's service medical records reflect that
he was seen in July 1968 with complaints of pain in the
chest and low back, those complaints were related to a
respiratory infection and resolved with treatment. He was
again seen in December 1968 at a dispensary after falling on
his head and having pain down his back and shoulders.
However, there was no indication of any significant injury
such as a fracture and he was treated conservatively without
further reference to any difficulty involving the head, back
or shoulders during the remainder of the veteran's military
service. Further, when he was examined in connection with
Reserve training duty in October 1971, he indicated that he
did not have or never had recurrent back pain. Clinical
evaluation of the spine was normal at that time. The
veteran made no reference to cervical or lumbar spine
conditions at the time of submission of his initial claim
for VA disability benefits in early 1980.
The veteran did not submit a claim for service connection
for the conditions at issue until February 1990 and
disabilities involving the cervical and lumbar spines,
including degenerative arthritis, were initially medically
demonstrated in 1988, many years following his release from
active duty. In the absence of evidence establishing any
continuity of symptomatology over the many years following
his release from active duty, the Board is unable to
conclude that the current disabilities of the veteran's
cervical and lumbar spine bear any relationship to the
inservice injury in December 1968 involving the head, back
and shoulders. Instead, it appears that the complaints
referable to that injury were for acute and transitory
conditions that resolved with treatment, leaving no residual
disability. Residual disability is necessary before service
connection may be established.
As discussed previously, there is of record a September 1990
report by a private physician, Dr. Parker, indicating that
he had treated the veteran on an intermittent basis from
1969 to 1987 for complaints including discomfort in the neck
and occasionally the low back. However, in the absence of
any office records confirming the doctor's report, the
record, viewed in its entirety, does not provide an adequate
basis for a grant of service connection for the conditions
at issue. Dr. Parker's statement may have been based on his
recollection of the events rather than his actual office
records and the evidentiary value of his statement is
diminished as a result. Significantly, no actual cervical
or lumbar disorder was diagnosed at any time during service,
including the January 1969 discharge examination, and the
veteran denied any relevant problems nearly three years
later when he was examined for Reserve purposes and found to
have a normal spine. Further, he claimed no back problem in
November 1980 on his original compensation application.
The Board has carefully reviewed the entire record in this
case, including the testimony presented by the veteran at
the hearing at the regional office. However, in the Board's
judgment, the evidence is insufficient to establish that the
veteran's chronic cervical and lumbar spine disabilities,
including degenerative arthritis, were either incurred in or
aggravated by service or that the degenerative arthritis may
be presumed to have been incurred in service. 38 U.S.C.A.
§§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303,
3.307, 3.309. Accordingly, under these circumstances, it
follows that favorable action in connection with the
veteran's claim is not warranted. The Board does not find
the evidence in this case to be so evenly balanced that
there is doubt as to any material issue. 38 U.S.C.A. § 5107.
ORDER
Entitlement to service connection for disabilities of the
cervical and lumbar spine is not established. The appeal is
denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
CHARLES E. HOGEBOOM (MEMBER TEMPORARILY ABSENT)
WAYNE M. BRAEUER
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
(CONTINUED ON NEXT PAGE)
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.